a covenant to convey land contained therein; where one cause of action was for the defendant's deceit practised in the sale of oil leases to the plaintiff, and the other was for money had and received, being the price paid by the plaintiff in the same sales.2 The owner in fee of land having been induced by the defendant's fraud to convey the same by a deed in which the wife joined, the grantor and his wife brought a joint action to recover damages for the deceit. The New York Court of Appeals held that the husband had a cause of action for the loss of the land which he owned in fee; that the wife had a cause of action for the loss of her inchoate dower right; that they could recover one joint judgment as a satisfaction for both claims; and, finally, that the two causes of action were properly united, since they arose out of the same transaction, namely, the bargaining and sale of the premises and the fraudulent representations made therein by the defendant. Several of the cases cited in the last preceding subdivision of this section might perhaps be regarded as instances of causes of action arising out of the same transaction; they certainly would be so if they were to be considered as embracing more than one cause of action.4 - § 477. The following are examples of causes of action contained in the same complaint or petition which have been held not to arise out of the same transaction: for an assault and battery and for a slander, although committed simultaneously; for 1 Gray v. Dougherty, 25 Cal. 266. 2 Woodbury v. Delap, 1 N. Y. S. C. 20; s. c. 65 Barb. 501. The first count set out the sale and the deceit and the damages; the others, for money had and received, alleged that the money had been had and received by the defendant "as above stated." This, it was held, incorporated into the latter counts the averments of the former, and showed that all arose out of the same transaction. a Simar v. Canaday, 53 N. Y. 298, 305, per Folger J. The complaint was not framed at all upon the theory which the court adopted in making this decision. It did not purport to set forth two separate causes of action; it was a joint complaint, and alleged a joint cause of action in favor of the plaintiff's, and demanded a single joint judgment. The peculiar feature of the decision is that which sustains a single 5 judgment for one sum as damages in satisfaction of both demands, although the case is expressly based upon the doctrine that there were separate and distinct causes of action. Assuming that the court was correct in this position, they plainly both arose out of the same transaction. 4 See supra, §§ 459, 460, and especially Bidwell v. Astor Ins. Co., 16 N. Y. 263; Phillips v. Gorham, 17 N. Y. 270; Laub v. Buckmiller, 17 N. Y. 620; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357; Lattin v. McCarty, 41 N. Y. 107; Howe v. Peckham, 10 Barb. 656; Blake v. Van Tilborg, 21 Wisc. 672; Fish v. Berkey, 10 Minn. 199. 5 Anderson v. Hill, 53 Barb. 238, 245; Dragoo v. Levi, 2 Duv. (Ky.) 520. But, per contra, see Harris v. Avery, 5 Kans. 146; Brewer v. Temple, 15 How. Pr. 286. 1 a breach of a warranty of soundness given on the sale of a horse, and for fraudulent representations as to the soundness made at the same sale; a claim by the plaintiffs as next of kin and legatees of A., two of the defendants being A.'s executors, and a claim by them as legatees of B., one of the defendants being B.'s executor, the action being for an account and settlement of both estates.2 § 478. When the plaintiff unites two causes of action which can only be joined because they arise out of the same transaction, or out of transactions connected with the same subject of action, the facts showing such common origin or connection must be averred, so that the court may see whether the joinder is proper. A mere general allegation that the causes of action all arose out of the same transaction, is of no avail, and would be surplusage.3 V. Instances in which the proper Joinder of Causes of Action is connected with the proper Joinder of Defendants; Discussion of the provision that all the Causes of Action must affect all of the parties. § 479. Questions relating to the uniting of causes of action may be presented in two forms: In whatever one of the enumerated classes they fall they may (1) be against the single defendant, or the several defendants all equally liable, perhaps jointly liable, in which case the inquiry has to do solely with the joinder of the causes of action themselves, and is not concerned with the joinder of the defendants; or (2) they may be against several defendants unequally and differently liable, one cause of action affecting a portion of the defendants more directly and 1 Sweet v. Ingerson, 12 How. Pr. 331. In accordance with the principles maintained in the text, the two causes of action in this case clearly arose out of the same transaction; indeed, a more illustrative example could hardly be found among purely legal actions. 2 Viall v. Mott, 37 Barb. 208. The Supreme Court of North Carolina, in a very recent case, seems to deny any operative force whatsoever to the first clause of the section under consideration, which, as it occurs in the code of that State, is identical with the one given in the text. Although the language used by the court is only a dictum, it is a strong expression of opinion that no causes of action can be united by reason of that particular provision unless they are embraced within some of the other classes mentioned by the section. See N. C. Land Co. v. Beatty, 69 N. C. 329, 834. 3 Flynn v. Bailey, 50 Barb. 73. See Woodbury v. Delap, 1 N. Y. S. C. 20; 65 Barb. 501. substantially than it does others. In such case the inquiry has to do with the joinder of the defendants as well as with the union of the causes of action. I shall, in the present subdivision, examine the latter of these cases. It is required by all the codes as a prerequisite to the uniting of different causes of action, that, notwithstanding they may all belong to the same class, they must affect all the parties to the action. The only exception mentioned in any statute is the action to foreclose a mortgage.1 § 480. While the causes of action thus united must affect all of the parties, it is not necessary that they should affect them all equally or in the same manner. If equality and uniformity were required, a large part of the equity jurisdiction would be swept away at one blow; for it is the distinguishing feature of that system that all persons having any interest in the subject-matter of the controversy or in the relief granted should be made parties, however various and unequal their interests may be. Indeed, equality of right or of liability was not essential in all commonlaw actions. It was only when the proceeding was in form joint that this equality was indispensable according to legal conceptions. The provision of the codes has not changed any of these former doctrines; it simply enacts in one statutory and comprehensive form the principle which controlled the courts, both of law and equity, under the former practice. It leaves an equitable action to be governed by the same rules as to parties which controlled it when equity was a distinct department, and it extends the theory at least to legal actions as well. The practical effect of this clause in the statute will be best learned from an examination of the cases in which it has been applied, and from the judicial construction which has been thereby put upon it. Those which are quoted first in order pronounce against the propriety of the union made by the plaintiff, because the causes of action. did not affect all the parties. § 481. The owner of a tract of land had made O. his agent for the purpose of selling it, and O. had sold the land to S., who also stood in a fiduciary relation to the owner, and S. had conveyed 1 This exception, in fact, confounds "relief" with "cause of action." It simply permits defendants to be joined against whom some special relief is demanded, and is therefore entirely unnecessary. In every such suit there is only one cause of action, unless a common-law action on the note or bond is combined with the foreclosure. 2 Vermeule v. Beck, 15 How. Pr. 333. portions of the land to different purchasers. The original owner thereupon brought an action against O. and S., charging fraud and a violation of their fiduciary duty against both. The complaint demanded a judgment of damages against O. for his deceit, and against S. an account and payment of all the proceeds and profits that he had or might have made from his own sales, and a reconveyance of the portion yet remaining unsold. The New York Court of Appeals held that the causes of action were improperly united; and, as its opinion is instructive, I quote from it at some length. The plaintiff has elected to regard S. as his trustee, and the complaint as to him and the decree proceed on this basis. The plaintiff therefore elects to affirm the sale as to S. He caunot uno flatu affirm it as to him, and disaffirm it as to the defendant O. It is difficult to see how under the provision of § 167 of the code these causes of action may be united in the same complaint. Although it may be said that both causes of action arise out of the same transaction, namely, the sale of the plaintiff's land to the defendant S., yet the cause of action against O. is for an injury to the plaintiff's property, while that against S. is a claim against him as a trustee by operation of law. The causes of action joined in the complaint do not affect both of the parties defendant. O. is not affected by nor in any way responsible for S.'s acts as plaintiff's trustee, and the complaint does not profess to make him liable therefor. So S. is not sought to be made responsible for the fraudulent, acts of O. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants which cannot be joined under the code."1 § 482. The same doctrine was asserted and ruling made in the following cases, the causes of action being held improperly united in each because they did not affect all of the parties: Where one cause of action was on a judgment against the defendant and two others, a second on a judgment against the defendant and one other, while a third was on a judgment against the defendant alone; where the first cause of action was against a husband and wife for a slander by the wife, and the second against the husband for his own slander; an action against a husband and wife on a contract made by both in the wife's business, where a personal judgment was demanded against him, and a judgment 2 1 Gardner v. Ogden, 22 N. Y. 327, 340, per Davies J. 2 Barnes v. Smith, 16 Abb. Pr. 420. 3 3 Malone v. Stilwell, 15 Abb. Pr. 421. And see Dailey v. Houston, 58 Mo. 361, 366. 3 5 to enforce the demand against the wife's separate estate;1 where the plaintiff's agent, with whom certain securities had been deposited, had transferred them in violation of his duty to various assignees, and a single action was brought against him and all these transferees to set aside the assignments and to recover the bonds or their proceeds; 2 an action by a reversioner against the tenant for life and the occupant to recover damages for injuries done by them to the land, the complaint containing a cause of action against one defendant for cutting and removing timber, a second against both for the same acts, and a third against both for removing fire-wood already cut; an action for deceit, in which one count of the complaint alleged fraudulent acts against a part of the defendants, and other counts charged similar acts against all; where damages were claimed from the owner of a city lot for making an excavation in a street, into which the plaintiff fell, and from the city for permitting the street to be broken up; an action against two defendants to recover damages for the flowing of plaintiff's lands, the complaint alleging in the first count that one defendant erected a dam in the north branch of a certain river, and in the second count that the other defendant constructed a dam in the south branch of the same stream, by the combined effects of which obstructions the injury was done ; an action against two defendants, in which the claim against one was for goods sold and delivered, and that against the other was on his promise to pay the price thereof; an action against a public officer and the sureties on his official bond for a breach thereof, the complaint containing also a cause of action against the officer alone for damages caused by a distinct and different negligent act; a cause of action against A. B. and C. for money loaned to them, and one against A. D. and E. on a note given by them as collateral security for the same loan.9 1 Palen v. Lent, 5 Bosw. 713. 2 Lexington, &c. R. R. v. Goodman, 15 How. Pr. 85. This was a special term decision, and is therefore not entitled to much authority. The case is clearly in principle identical with the ordinary creditor's suit. 3 Rodgers v. Rodgers, 11 Barb. 595. 4 Wells v. Jewett, 11. How. Pr. 242. 5 Trowbridge v. Forepaugh, 14 Minn. 133. 6 Lull v. Fox & Wisc. Imp. Co., 19 Wisc. 100, 102. Sanders v. Clason, 13 Minn. 379. See also cases in regard to guarantors, supra, § 306. 8 State v. Kruttschnitt, 4 Nev. 178; Ghirardelli v. Bourland, 32 Cal. 585. And against the sureties on an administrator's bond for a breach thereof, and against the administrator himself for a violation of his trust. Howse v. Moody, 14 Fla. 59, 64, 65. 9 Farmers' Bank v. Bayliss, 41 Mo. 274. And see Lane v. State, 27 Ind. 108. |